*Under 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except in the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-41136

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBEN ANSELMO ZEA-LUNA; ALEJANDRO GUDINO-VARA,

Defendants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas

(M-96-CR-198-4)

September 18, 1998

Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

A jury convicted Ruben Anselmo Zea-Luna and Alejandro GudinoVara of conspiracy to possess with intent to distribute marijuana.

The district court sentenced Zea to 46 months of imprisonment and

three years of supervised release. It sentenced Gudino to 52

months of imprisonment, three years of supervised release, and

imposed a $10,000 fine. Zea and Gudino timely filed notices of

appeal. They argue that the district court erred in giving them a

two-level enhancement for obstruction of justice. Gudino also

argues that the district court erred in imposing the $10,000 fine.
 

2 United States v. McDonald, 964 F.2d 390, 392 (5th Cir.

1992.)

 

3 See United States v. Maldonado, 42 F.3d 906, 909-12 (5th

Cir. 1995); United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc).

 

4 United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).

2

Neither contention has merit. We affirm.

We review the district court’s findings regarding the

obstruction of justice enhancement under the “clearly erroneous”

standard.2 The appellants contend that there was no evidence to

support the finding that they knew their families paid a bribe to

a juror sitting on their case. The district court found that

several factors pointed to Zea’s and Gudino’s indirect

participation in the bribe of the juror. With regard to Zea, the

court concluded that because of his close family relationship, his

desire to retain his attorney despite a conflict of interest, and

his attorney’s knowledge of the juror contact, Zea must have been

aware of the bribe. With regard to Gudino, the court concluded

that he was aware of the bribe because of his close relationship

with his family members and his substantial access to them during

the trial. Viewing the record in its entirety, the district

court’s account of the evidence is plausible.

We review the district court’s imposition of the $10,000 fine

for plain error because Gudino did not raise the issue before the

district court.3 “Questions of fact capable of resolution by the

district court upon proper objection at sentencing can never

constitute plain error.”4 Gudino’s contention that he has the
 

5 See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.

1992).

3

inability to pay the $10,000 fine is a question of fact which could

have been resolved in the district court upon proper objection, and

therefore does not constitute plain error. Moreover, even if the

issue is subject to review for plain error, Gudino has not made the

required showing because he neither presented evidence at the

sentencing hearing regarding his inability to pay a fine, nor

attempted to rely upon the figures regarding his ability to pay

presented in his Presentence Report.5

AFFIRMED.